Today’s Wall Street Journal notes the impact that the Kelo decision has had on eminent domain law in the state of Washington:

The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city’s ambitious “Town Square” development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan–it would put a road through the property, and the city manager told his staff to “make damn sure” it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city’s actions might be “oppressive” and “an abuse of power”–but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.

Welcome to the post-Kelo world. The U.S. Supreme Court’s 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.

In the immediate aftermath of Kelo, states passed laws purporting to limit local government’s power of eminent domain, and political leaders pledged that they would not use that power to take property for private use. The article points out, though, that reality has proven to be far different:

Regardless of strong constitutional protections for private property, governments and courts now view eminent domain as an area where few if any restrictions exist. And not just in Washington. In probably the most appalling example, the U.S. Court of Appeals for the Second Circuit let stand a condemnation in which a developer in the Port Chester, N.Y., demanded that Bart Didden give him either $800,000 or a 50% share in Mr. Didden’s property, which was slated to be a CVS pharmacy–or the developer would have the village condemn it. Mr. Didden refused; the next day, the village condemned his property to hand it over to the developer to construct a Walgreens. Tomorrow, the U.S. Supreme Court will consider whether to take the case.

Meanwhile, state and federal courts are turning redevelopment areas into Constitution-free zones, where the government can do what it wants with few or no restrictions. It doesn’t have to be this way. Courts could force the government to comply with the state and federal constitutions. Local governments could limit their takings only to legitimate public uses. But until all three branches of government begin taking their constitutional obligations seriously, property owners across the country face the continued threat of eminent-domain abuse, regardless of what the state or federal constitution says.

In other words, the battle against the property takers continues.